A proposed unauthorized access offense in Germany

Abstract

Because of the need to protect network-connected industries, especially critical infrastructures, and in order to respond to new forms of cyberattacks such as those using botnets, the German legislature has proposed another unauthorized access offense (StGB §202e) in addition to the existing StGB §202a. Compared to its predecessor, StGB §202e does not require that one overcomes a security measure to be applicable; it also has clauses that increase punishment in certain circumstances: acting for a fee, or acting for the purpose of impairing the function of critical infrastructures. German legal scholars also recognize the necessity of reforming to some extent current criminal law statutes to apply to the new forms of cybercrime, and this new statute would certainly make acts punishable that remain unpunishable under current criminal statutes. However, many opponents object the proposed StGB §202e because the punitive scope of this new offense is so broad that there is a major risk of punishing daily and unharmful acts. The discussions pertaining to StGB §202e in Germany illuminate some key points for creating appropriate regulations to prevent cyberattacks in Japan. In this article, I introduce the discussion about this theme to obtain some valuable information concerning Japanese cybercrime legislation.